In Re James Q.
Rеcently this court decided it is an abuse of discretion for the juvenile court to deny a parent a contested review hearing (
BACKGROUND
On September 21, 1998, the Department of Health and Human Services (DHHS) filed amended section
DHHS detained the minors on August 13, 1998. On November 13, 1998, the juvenile court sustained the petitions after amending them further, adjudged the minors dependent children, and ordered DHHS to provide appellant with reasonable reunification services. The court also scheduled a review hearing pursuant to section
Visitation with the minors was one component of appellant‘s reunification plan. The juvenile court ordered DHHS to provide appellant with suрervised weekly visits. According to the social worker, appellant failed to avail herself of the opportunity to visit with the minors. In March 1999, appellant canceled a visit due to illness and thereafter her whereabouts became unknown. Moreover, as of the social worker‘s May 1999 report, appellant had made just three telephone calls to the minors.
Appellant‘s participation in reunification services was inconsistent. She completed a series of parenting classes. However, appellant failed to test on
At the May 17, 1999, six-month review hearing pursuant to section
Counsel for the minors urged the juvenile court to reject appellant‘s request for a contested hearing. Counsel asserted there was no factual dispute existing between the parties. Counsel also asserted reunification services for appellant should be terminated due to appellant‘s failure to maintain cоntact with the minors during the past six months.
Counsel for DHHS agreed with the position expressed by the minors’ counsel.
Counsel for appellant said a contested hearing was necessary in order for the juvenile court to hear appellant‘s testimony about her contact with the minors. Counsel also asked for cross-examination of the social worker and said it was possible the social worker then might alter her opinion about whether to recommend continued services to appellant.
The juvenile court said it was “not satisfied” appellant had “issues regаrding [a] contested hearing.” The parties then discussed appellant‘s visitation pattern with the minors. Appellant averred she had arranged a visit, but one of the minors had become ill.
Counsel for appellant said appellant “would like me to add on two occasions since juris [sic], attempt to set up visits, once because [the] minor was sick, one because transport worker was sick — visits did not occur. So she has made efforts to have visits. She has had substantive phone contact with her kids.”
The juvenile court denied appellant‘s request for a contestеd hearing. The court said it had not heard a “sufficient offer of proof as to evidence that would be presented at the contested proceeding via documentary evidence or
DISCUSSION
I
Appellant contends the order by the juvenile court denying her request for a contested six-month review hearing “which would have permitted her an opportunity to testify as to the significance of the contacts with her children and their caretaker, and the reasons why she had not visited more, deprived her of due process.” Relying in part on our opinion in Ingrid E. v. Superior Court, supra, 75 Cal.App.4th 751, appellant argues she was entitled to adduce evidence at the review hearing relevant to the issue of whether she had maintained contact with the minors. According to appellant, her “offer of proof attempted to establish the nature of the contact. She also attempted to establish why there was not more contact. It was error for the court not to permit her to do so.” Appellant says a review hearing is a “critical phase,” since termination of reunification services was the outcome recommended by DHHS. Appellant alleges the court‘s order violated both statutory law and her constitutional right to due process.
DHHS argues appellant has failed to demonstrate an abuse of discretion by the juvenile court in denying her a contested review hearing. DHHS says a contested hearing was unnecessary and would not have affected the outcome of this case. DHHS tries to distinguish Ingrid E. v. Superior Court, supra, because the 18-month review hearing at issue there was the mother‘s last opportunity to prevent termination of her relationship with her children. DHHS claims appellant was not denied due process and avers that, even if the court erred, no miscarriage of justice resulted.
II
We begin, as we must, with a discussion of the pertinent statutory authority. Subdivision (e) of section
As the terms of section
Section
III
In order to understand the role and stature of review hearings generally in the dependency system, it is instructive to review the general statutory framework within which those hearings operate. Legislation enacted in 1982 established, among other provisions, review hearings to be heard every six months, up to 18 months. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 246.) Thereafter, subsequent legislation modified the dependency scheme generally and highlighted the importance of review hearings. (Id. at pp. 247-249.) At the review hearings conducted since then, it is statutorily presumed the child will be returned to parental custody unless the juvenile court finds by a preponderance of the evidence that returning the minоr will create a substantial risk of detriment to the well-being of the minor. Moreover, it is the agency, rather than the parent, that bears the burden of establishing detriment. (
At every review hearing, the juvenile court is obliged to determine whether the agency offered the parent reasonable reunification services. (
Review hearings are a critical aspect of the dependency system in two respects. First, findings made at those hearings often form the basis of an order at the permanent plan hearing terminating parental rights. (
Of course, as we have seen, it is at the review hearings that crucial determinations regarding reunification efforts and the return of the minor are
From the perspective of the parent, review hearings are the essential mechanisms by which he or she may be foreclosed from any further relationship with the child. Parents have a liberty interest in their relationship with their children. This interest is fundamental and, therefore, may not be extinguished without due process. (Santosky v. Kramer (1982) 455 U.S. 745 [71 L.Ed.2d 599].) Family preservation, of which reunification services constitutes an integral component, is the “first priority” through the review hearing stage of dependency proceedings. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) During this time, the parent has the best opportunity he or she ever will have to make the strongest case possible in favor of returning the child to parental custody. Thus, review hearings represent one of the “[s]ignificant safeguards . . . built into the current dependency scheme.” (In re Marilyn H. (1993) 5 Cal.4th 295, 307, 308.)
IV
A “hearing” denotes an opportunity to be heard and to adduce testimony from witnesses. Moreover, parties in civil proceedings have a due process right to cross-examine and confront witnesses. (In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 16.) Read as a whole, subdivision (e) of section
We also know that, where the Legislature has wanted to limit the nature of a parent‘s right to a contested dependency hearing, it has done so. For example, section
In In re Heather P. (1989) 209 Cal.App.3d 886, 891, the mother of the minor claimed the procedure established under section
The court in In re Heather P., supra, at page 891, construed the requirement in section
In contrast to section
V
What, then, are the due process attributes of a proper review hearing in the dependency system? Along with the important requirement of providing proper notice of such a hearing, the right to present evidence, and to cross-examine adversarial witnesses, i.e., the right to be heard in a meaningful manner, are the minimum. (In re Matthew P. (1999) 71 Cal.App.4th 841, 851; In re Crystal J. (1993) 12 Cal.App.4th 407, 412, see also In re Malinda S., supra, 51 Cal.3d at p. 383, fn. 16.) “A meaningful hearing requires an оpportunity to examine evidence and cross-examine witnesses. . . .” (In re Crystal J., supra, at p. 413.) The cases cited above did not consider review hearings. However, in light of the critical role review hearings play in the dependency system, due process requires review hearings be accorded the same entitlements.
The essential characteristic of due process in the statutory dependency scheme is fairness in the procedure employed by the state to adjudicate a parent‘s rights. (Id. at p. 412.) Due process also connotes a “hearing appropriate to the nature of the case.” (Mullane v. Central Hanover Bank Trust Co. (1950) 339 U.S. 306, 313 [94 L.Ed. 865, 872].) In Ingrid E., supra, 75 Cal.App.4th at page 757, we acknowledged due process is a flexible concept, one whose application depends on the circumstances presented. We also recognized the juvenile court has the statutory duty and the power to identify the issues relevant to the particular hearing and to make necessary relevancy determinations. (Id. at p. 760.) Finally, we made clear our recognition of the pressures faced by our overworked juvenile courts. (Ibid.)
Presented with the facts in Ingrid E., supra, this court had little difficulty deciding the petitioner there tendered such a sufficient offer of proof the
Under the circumstances presented in Ingrid E., supra, we had no need to decide whether the juvenile court may deny a party a contested hearing because the party has failed to tender an offer of proof. (Id. at p. 760.) This case presents that issue. It is true the parties suggested in their written arguments, appellant made an “offer of proof” at the hearing. The court also assumed one was made. Where the parties differ is over the sufficiency of the proof offer. However, in their written arguments neither party has addressed the issue or considered the elements of a proper offer of proof.
None of this matters. From our examination of the record, we conclude appеllant tendered no offer of proof in the juvenile court. In fact, from appellant‘s counsel‘s comments to the court, which were spread over several pages of the transcript of the review hearing, it is difficult to discern precisely how appellant would have proceeded at a contested hearing.
VI
We are faced, then, squarely with the issue of the propriety of the juvenile court requiring offers of proof in determining whether to conduct review hearings. As a matter of statutory construction and constitutional due process, we conclude the juvenile court cannot require a party to a review hearing tо tender an offer of proof as a condition to obtaining a contested hearing. (See In re Johnny M., supra, 229 Cal.App.3d at p. 191; Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1386.) A party must be able to make its best case, untrammeled by evidentiary obstacles arbitrarily imposed by the courts without legislative sanction. (Cf. In re Heather P., supra, 209 Cal.App.3d at p. 891.)
The juvenile court may make evidentiary requests of a party on any of a number of issues during the contested hearing itself. As we have suggested, the Evidence Code, among other statutory provisions, provides ample means for the courts to control contested proceedings in the dependency courts. (See,
Our conclusion is compelled by application of the flexible balancing standard employed in a due process analysis. Here, it is axiomatic that appellant‘s due process rights are implicated. (In re Malinda S., supra, 51 Cal.3d at p. 383, fn. 17.) The balancing standard considers the private interest that will be affected by the agency‘s action, the risk of an erroneous deprivation of that interest, the interest in informing parents of the basis for and consequences of the action and in enabling them to present their side of the story, and the agency‘s interest in expeditious decisionmaking as affected by a burden caused by an additional procedural requirement. (In re Malinda S., supra, at p. 383.)
Applying the factors stated above to the issue in this case, we are persuaded that due process requires the juvenile court to permit a parent to avail himself or herself of thе right, if he or she chooses, to a contested review hearing without conditioning that right on a demand for an offer of proof. As we have indicated, the interests possessed by the parent at a review hearing are substantial ones. Consequently, it is essential for the parent to be enabled to make his or her case. Finally, as we have emphasized, the court retains sufficient authority and discretion to conduct the hearing with reasonable dispatch consistent with the dictates of the statutory framework.5
In support of its claim that a juvenile court propеrly may require an offer of proof before granting a contested hearing, DHHS relies on In re Jeanette V., supra, 68 Cal.App.4th 811, and Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138. We are unpersuaded. As appellant notes in her brief, unlike here, each of those cases involved hearings following the expiration of the reunification period. Moreover, in both cases the offers of proof were irrelevant to the issues to be decided at the hearings. (Maricela C., supra, at pp. 1146-1148; In re Jeanette V., supra, at pp. 815-817.) Thus, those decisions are distinguishable on their facts from this case.
VII
Our state‘s dependency statutory scheme imposes strict requirements to resolve cases expeditiously. It also requires due process for all parties,
In this case, appellant asked for, but was denied, a hearing by which she could formally challenge the propriety of ending her reunification services. The juvenile court, without statutory authority, refused to accord appellant a contested hearing. It should have conducted such a hearing, implementing appellant‘s right to be heard at this critical stage of the dependency proceedings. The court‘s failure to do so resulted in a miscarriage of justice. (
On remand, the juvenile court shall conduct another review hearing pursuant to section
DISPOSITION
The judgment is reversed, and the matter is remanded for further proceedings consistent with this opinion.
We Concur:
SCOTLAND, P.J. SIMS, J.